Well at least three got it right. On November 4, 2011 the Supreme Court released its decision in R v Sarrazin, 2011 SCC 54. I had predicted that the Court might agree with the insightful dissent of Moldaver J at the Court of Appeal. I was wrong about that. I take solace in my company (Moldaver, Deschamps, Rothstein and Cromwell JJ). I also take solace in the fact I still think I am right.
In Mack's Criminal Law Bulletin, Issue 1, I wrote at length about the Court of Appeal's ruling in Sarrazin, 2010 ONCA 577. I also blogged about the curative proviso in a recent post: The Curative Proviso, to apply or not to apply, that is the question... In my Bulletin I was of the view that Moldaver JA (as he then was) got it right in his dissent. The trouble with the majority's ruling at the Court of Appeal and Supreme Court was succinctly encapsulated by Cromwell J:
Respectfully, this is an elegantly understated way of expressing what to me is an unacceptable proposition: appellate courts should assume that a jury might relax the standard of proof of causation because the alternative would be to let the accused walk. I cannot agree, on such speculative grounds, to set aside a jury verdict of 12 citizens who are presumed to have honoured their oath and who received impeccable legal instructions on the very issue in contention [para 52].
This is an important point. As I argued in Issue 1 of my Bulletin, there was no complaint here about the charge to the jury on causation; there were no questions on that issue from the jury. Given that the jury is an integral part of our criminal justice system, it is "an unacceptable proposition" to find they may have been subconsciously impacted by this error.
In the end I maintain my view which was eloquently offered similarly by Cromwell J:
No one questions that the trial judge gave the jury complete and accurate instructions on causation. The jury’s verdict necessarily means that they were persuaded beyond a reasonable doubt that the gunshots caused the deceased’s death. The admitted error was failing to provide instructions on attempted murder. Those instructions would only have been relevant if the jury had a doubt about causation, which, as their verdict unambiguously attests, they did not. In those circumstances, in my respectful opinion, the error clearly had no impact on the verdict [para 41]; [emphasis added].
The error was a serious one. Yet, it in fact had no impact. The verdict could not possibly have been different. The Court should have, with respect, respected the jury's verdict.